Lab Bench, Back Bench

Hey, Hey DNA!   What Can You Do For Us Next May?

There’s quite a bit to pick through after last week’s motions and status hearing.

Start with the headline from Friday’s status hearing, “Win, Lose or Draw.”   Just what did Bernie Grimm mean by that?  Was he revealing a defense strategy?

Tempest in a BeakerA large part of Friday’s hearing had the defense pleading with Judge Weisberg to force the Government to produce the ‘bench notes’ the FBI’s DNA technicians took while processing crime scene evidence, in particular bed linens where Robert was found.

The issue is that so little biological evidence was recovered from Robert, via swabs, the DNA techs had to combine a number of samples to get a composite.  (This may seem problematic, but it’s actually standard practice in DNA amplification.)

Bernie Grimm is lead dog on the hard science in this case.  He’ll admit doing poorly in high school chemistry but that’s him just being coy.  “Spectragrams… ferrigrams… serology and epithelial.”  I bet Bernie got a gold star in DNA.  

Bernie drove it hard but Weisberg wasn’t buying. , “You have no right to those notes.”  First reports indicate that it is Robert’s DNA, and his alone.  Both sides seem to agree on that.   So why the fight?

The defense may wish to claim that the combined sample was mishandled by the FBI lab and therefore may have overlooked a fourth party’s DNA (e.g. an ‘intruder’).  If the  sample is compromised it raises doubt on its basic validity.

No DNA test to pick apart?  What’s left?

Losing a DNA fight could be troublesome.  For a case based only on evidence, let’s see what else may be in play:  Deputy Medical Examiner Lois Goslinoski’s findings could be very compelling and damaging.  The jury could have a hard time with the small amount of blood found at the scene.  The 14 – 34 minute gap before calling 9-1-1 will be hard to explain and Victor’s  call itself may fall flat.   And that’s before Kirschner gets to Officer Diane Durham’s  statement.  She must still be a recurring nightmare for defense.

“This case is win, lose or draw, based on evidence…  and not witnesses…”

Bernie Grimm, November 6, 2009

Granted, the evidence could be problematic.  But no witnesses?  Why is that?

There’s at least one witness who knows what happened that evening. 

Have the back benchers, the three men who sat behind Mr. Grimm on Friday afternoon, done everything they can to unearth a witness?  Publicly it doesn’t appear so and we may never know what their efforts have been. 

But the shortest distance between the two points – of no witnesses and a witness – could be the three defendants themselves.

But as any case-watcher knows, the roommates have been effectively muzzled, self-imposed or otherwise.   Of course they have the right to not take the stand, a reasonable and expected exercise of their constitutional rights.   And it’s also been said that allowing them to testify would amount to legal malpractice.

So the question remains: no evidence, no witnesses; what’s left?

Paging Dr. Lee.  Dr. Henry Lee, white courtesy phone please.

Coming up: There will be plenty to dive into with the defense team’s new and ‘celebrated’ forensics expert, Dr. Lee.   We may need a stringer from TMZ.

Later we’ll profile the experts the Government has already retained.  We’ll look at what physical evidence each side may have to work with, and we’ll share the guidance from an independent blood patten analyst who is helping us understand the science/craft, and their role in trials.  He’ll offer his thoughts on what the evidence which has been released demonstrates.


13 comments for “Lab Bench, Back Bench

  1. Clio
    11/09/2009 at 3:59 PM

    “Win, lose, or draw” means that Bernie thinks that they did it! No witnesses for the defense equals no empathy from the jury, which means a prosecution victory. I’ll pick Door #2 for the defense, Monte.

  2. Clio
    11/10/2009 at 10:22 AM

    Why has the government been so slow in releasing the bench notes? I think that a close reading of those documents would add to the close reading (in the colloquial, drag queen sense) of the defendants.

    • David
      11/10/2009 at 12:11 PM


      The reason the government is slow in releasing the bench notes is because they are not required to release them under either the Brady ruling or Jencks Act, or so found Judge Weisberg at last Friday’s status hearing.

      Moreover, they have turned over an abundant amount of evidence to the defense, and they don’t need to show their entire hand until trial.

      David, co-ed.

    • Craig
      11/10/2009 at 2:26 PM

      And the next status hearing date has been announced: January 15.

      More on that soon and other motions that have just hit.

      • Clio
        11/10/2009 at 3:23 PM

        Great — I will tell my florist, and I will spend an MLK weekend in DC (at a hotel and not at a friend’s home) — thanks, Judge Weisberg! Only a “nor-easter” blizzard could keep me away from witnessing this little nugget of history.

  3. Themis
    11/10/2009 at 4:43 PM

    We always got the bench notes when I was doing homicides (in one of the states, not DC). A defense expert cannot accurately evaluate the government expert’s conclusions without them. If there’s nothing wrong with its expert’s analysis, the government could be making a big tactical mistake by not turning them over because it creates a pretty good issue for appeal.

    • David
      11/10/2009 at 5:18 PM


      Knowing that Judge Weisberg is cautious and would not want this case to be overturned on appeal on a decision he made, why then would he rule against turning over the bench notes? He was rather adamant the the prosecution does not need to turn over the bench notes in this situation.

      David, co-ed.

      • Craig
        11/10/2009 at 5:25 PM

        Themis – To expand on that: Bernie Grimm raised the possibility that the May trial could go on hiatus while the validity of the DNA testing procedures were being worked out.
        He didn’t mention appeal, but did drop the ‘m-word,’ mistrial.

        The G was adamant that they turned over more documentation that they needed to and as David said, Judge Weisberg was satisfied with what they produced.

        Thanks for your thoughts on this. I know you have a lot on your plate right now, but your take on the motion to dismiss the conspiracy and obstruction counts is most welcome. XO

    • Bea
      11/10/2009 at 6:14 PM

      Hey Themis, scanning backward through my memory Rolodex, it seems to me that this question is well-settled within the particular jurisdiction. And Weisberg wouldn’t risk be appealed on what is usually a black-and-white issue. Two cents.

  4. Themis
    11/10/2009 at 9:57 PM


    I think the judge is risk averse, but I am getting the feeling more and more that the defense team us starting to phone it in as the prospect of collecting all of their fees dwindles. Some of their pleadinha are obvious rehashes. Sure, it’s a loss leader. But they still want minimize the economic losses. Geragos’ shitty job on Scott Peterson’s case didn’t didn’t hurt his ability to find work.


    I’ll try to read the motions soon, but my gut tells me that they are hail mary passes that likely rely on precedent that was all decided 20 years ago, i.e., recycled boilerplate.

    Just my 2 cents.

    • Clio
      11/11/2009 at 9:33 AM

      Thanks, Themis. My intuition about Bernie & Co. going through the motions (literally and figuratively)with a losing hand is then all too true: “win, lose, or draw” indeed, because we get paid for any outcome!

      Needham, stop wasting your fortune on “hail-mary” passes and crap shoots: you can redeem yourself with your other progeny by doing so. There is still time to distance yourself (at least financially) from this mess.

  5. Themis
    11/11/2009 at 10:49 AM

    It sounds like the judge is looking for caselaw from the defense, which they aren’t bothering to research and present. Hell, I would be citing other jurisdictions, even if it is only persuasive authority. I’m sure there is some caselaw out there.

    There are all sorts of tactical arguments to be made as well, but they take time and effort and, therefore, mone. Even if you know you are going to trial, you need a good motions practice.

    For those who are interested in the most recent case on the right to cross examine forensic techs, check out melendez-diaz at It is in with the opinions from the last (08) term. The merits and amici briefs are on the ABA website.

    Sorry about the typos. Working off the blackberry until the new laptop comes.

  6. Michael
    04/28/2010 at 3:27 PM

    Time line: 08022006
    2245 hrs :: Wone, Price and Ward retire for the evening, Ward takes sleeping pill and is asleep within 5 minutes after reading (Really? Since when does a sleeping pill take effect within 5 minutes?)
    2250 hrs :: Ward falls asleep
    2305 hrs :: E-mail composed to Wife Kathy, but not sent
    2307 hrs :: E-mail composed to Robert Wone’s colleague – was it sent?
    2300-2330 hrs :: Scream or low grunt was heard (okay, which was it? One is loud, one is not) along with chimes from door alarm.
    2349 hrs :: Zaborsky calls 9-1-1

    Quote: The defense may wish to claim that the combined sample was mishandled by the FBI lab and therefore may have overlooked a fourth party’s DNA (e.g. an ‘intruder’).

    Someone please tell me when there was time for an “intruder” to enter the dwelling, collect a knife, silently sneak up to the second floor, sexually assault – whether against his will or in acquiesce – Mr. Wone, take him to the bathroom – which was not in the guest room/office – stab him three times, and while he was bleeding to death, make him take a shower until he died, then dress him, take him back to the guest room/office, put him bed, and finally, silently sneak out of the house.

    *Note* said intruder’s actions may differ from this dramatic misrepresentation.

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